David Boyle Overturns Finding of Contributory Negligence in Court of Appeal

GRAY v GIBSON (2014)

CA (Civ Div) (Longmore LJ, Patten LJ, Christopher Clarke LJ) 04/03/2014
http://www.lawtel.com/MyLawtel/Documents/AC9601746

Having established primary liability at trial, but subject to a finding of contributory negligence of 40%, David Boyle successfully appealed the latter decision, notwithstanding that it involved findings of fact and the exercise of judicial discretion.

Background:

G had been driving her car along a single-carriageway country lane with a national speed limit. X had been driving a lorry in the opposite direction. The vehicles collided on a bend where the road was only 16-and-a-half feet wide: X's lorry was eight-and-a-half feet wide and had inevitably encroached into G's lane.

X brought a very modest claim and G counterclaimed in Multi Track. G’s insurers paid X some 50% of his claim without prejudice to liability and the matter proceeded on the counterclaim alone.

At a case management conference, when discussing the question of a split trial and the possibility of interim payments to allow CBT, the district judge indicated that his starting point for liability between the parties was "50:50", until he saw what he made of the parties. A split trial was ordered, and whilst the matter was proceeding in the Multi Track, the trial was ultimately listed before the same tribunal.

At trial, he found that G had been driving at 30 mph and, having rejected X's assertion that he had been travelling at between 10 and 15 mph, that X had been driving at 25 mph. He found that at the time of the collision G's car had been one foot from the verge and X's lorry two feet from the verge, so that it had passed over two feet onto G's side of the road. He held that X bore additional responsibility as a lorry driver to be careful as he had insufficient visibility around the bend, and that he had been travelling too fast. However, he also found that G had been negligent for travelling too fast around the bend, that the accident would have been avoided had she been travelling more slowly, and that her contribution was 40%.

G contended that the judge had erred in (1) starting from a 50:50 position on liability; (2) failing to have regard to X's lack of credibility, having rejected his assertion on his speed and a number of other matters; (3) finding that X had been travelling at only 25 mph; (4) finding any negligence on her part and criticising her for driving at 30 mph when that was well within the specified national speed limit and she was on her own side of the road.

HELD: (1) It was unfortunate that the judge had said that his starting point for liability was 50:50: to start with the proposition that both parties were negligent was wrong. However, his additional comment that his position might change depending on what he made of the parties demonstrated that he had had in mind that the 50:50 position could alter. When he came to deliver his judgment, that was more or less what he had done, although the parties were left wondering whether he had been prepared to shift sufficiently from his starting position. (2) The fact that X was not credible could not help to decide the question whether G had been negligent. (3) The finding that the lorry had been travelling at 25 mph was generous to X, but that fact alone was not dispositive of the case. (4) The judge had accepted G's evidence that she was familiar with the road and was used to meeting and passing large vehicles on it. He had not, however, considered whether she could have expected to meet a large lorry over two feet onto her side of the road. G could not be blamed for failing to foresee that eventuality. A lorry driver crossing over the middle of the road owed a particular duty of care and was not to drive at a speed at which he could not stop within a short distance. G could not be criticised for failing to foresee that the driver of a large lorry would not take that obvious precaution, and she could not be described as having driven dangerously. X was, accordingly, 100 per cent liable for causing the accident.

Appeal allowed.

Comment:

The determination of liability for road traffic accidents is a daily task for the District and Circuit bench, and one which depends on the facts in any given case. When accidents occur on a narrow country road, there is an inherent tendency towards splitting liability, but that is the wrong analysis. The onus is on a Claimant to prove the Defendant negligent and then and only then should the Court consider whether the Defendant can prove the Claimant partly at fault.

Whilst that proposition is trite, in reality litigants (and particularly their insurers) often start at 50:50 in their negotiations. It is important that the Court does not adopt the same approach at trial. It is worth bearing in mind that for litigants, a 50:50 can, as here, just as easily reflect the equal possibility that one side or the other will win in full, rather than both sides being equally at fault, but that luxury is not open to the Court.

There is, of course, the possibility that neither side will prove the other negligent on the facts of the case, but those circumstances are rare. If the road is particularly narrow and both parties are encroaching, the Court would, it is submitted, find their respective speeds excessive and could legitimately apportion liability between the drivers.

The import of the post-accident photographs was significant. Without them, the Claimant would potentially have struggled to prove her innocence, and the fact that X’s version to the police was wrong. The debris on the photograph was compelling evidence.

The reality here was that the Claimant was driving sensibly and had not been negligent. The Defendant’s vehicle was a large one, and he was encroaching on her side of the road. Had he been driving a car and taking up some 64% of the road (as here), he would have been wholly to blame. Knowing that his vehicle was particularly wide, there was an onus on the Defendant to take extra care and he was in breach of his duty.

Whilst the point did not need to be decided, submissions were made as to the relevant factors in determining apportionment. On the question of causative potency, the Claimant took the point that the ‘destructive disparity’ between a lorry and a car was akin to that between car and pedestrian (c.f. Eagle v Chambers, Smith v Chief Constable of Nottinghamshire Police and Lunt v Khelifa) whilst the Defendant’s position was that both parties were at fault and the district judge had not erred given that his discretion was a wide one. The point remains undetermined on the question of apportionment, but is, perhaps, reflected by the finding of the Court of Appeal on the key issue in this case.